Watson (Charles) v. State ( 2014 )

 guilty of furnishing alcohol to minors, we conclude that the district court
did not abuse its discretion by denying the proposed instruction, see
Ouanbengboune v. State, 125 Nev. 763, 774, 220 P.3d 1122, 1129 (2009).
Watson further contends that the district court erred by
failing to instruct the jury that it was not a crime for Watson to give the
minors alcohol because he was their guardian. From the record, it does
not appear that Watson proposed such a jury instruction. See Bonacci v.
State, 96 Nev. 894, 899, 620 P.2d 1244, 1247 (1980) (holding that the
failure to request an instruction precludes appellate consideration unless
there is plain error); see also Green V. State, 119 Nev. 542, 545, 80 P.3d 93,
95 (2003) ("In conducting plain error review, we must examine whether
there was error, whether the error was plain or clear, and whether the
error affected the defendant's substantial rights." (internal quotation
marks omitted)).
In discussing jury instructions, the district court stated:
I agree with the discussion we had in chambers
where [defense counsel] was saying in closing I
would like to be able to argue that since is [sic] he
doesn't fall within the ambient [sic] of that
statute, I can make the argument that there is no
law that's given to the jury that says a parent who
gives alcohol to their child is per se guilty of child
abuse and neglect. I agree with that. The State
still has to meet all of the elements of their child
abuse charge.
At closing, Watson's counsel argued: "I can tell you and the judge will
correct me if I mislead you, it is not illegal, per se, for a parent or guardian
to provide alcohol to a child. It's not," As Watson did not propose an
instruction but the jury was informed by defense counsel that it was not
per se illegal for a guardian to provide alcohol to a minor, we conclude that
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the district court's failure to sua sponte give the instruction was not plain
error."
Lastly, Watson claims that counts four through six, all
relating to one victim, and counts eight and nine, both relating to another
victim, should merge because of the State's theory of liability and the
nature of proof. Watson claims that child abuse, through the means of
providing excessive alcohol, is a single act under the unit-of-prosecution
doctrine affirmed in Jackson v. State, 128 Nev. , 291 P.3d 1274 (2012),
and cannot be multiplied by the drink or by the drunken episode. We
review a redundancy challenge to multiple convictions for an argued single
offense de novo. Id. at , 291 P.3d at 1277. "When a defendant receives
multiple convictions based on a single act, this court will reverse
redundant convictions that do not comport with legislative intent." State
v. Koseck, 113 Nev. 477, 479, 936 P.2d 836, 837 (1997) (internal quotation
marks omitted). The plain language of the statute demonstrates that the
unit of prosecution is causing a child to suffer unjustifiable physical pain
or mental suffering or placing a child in a situation where the child may
suffer physical pain or mental suffering. We are unconvinced by Watson's
'To the extent that Watson argues that the district court erred by
denying his special verdict form that separated child abuse, neglect, or
endangerment into the two theories alleged by the State and therefore
violated his right to a unanimous verdict, we conclude that the district
court did not abuse its discretion by refusing the special verdict form. See
Richardson v. United States, 526 U.S. 813, 817 (1999) (concluding that
unanimity in the theory supporting an element of a crime is not necessary,
as long as all jurors findS that the element was proved beyond a reasonable
doubt); Anderson v. State, 121 Nev. 511, 515, 118 P.3d 184, 186 (2005)
(holding that the jury does not need to be unanimous on a particular
theory of culpability to sustain a conviction for a single offense).
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argument that his culpability stems from a single, continuing incident of
providing excessive alcohol. The victim for counts four to six testified
about multiple occasions in the months he lived with his foster parent and
Watson where Watson provided him with alcohol, marijuana, or both. As
to the victim for counts eight and nine, evidence was presented that
Watson gave him money for marijuana and alcohol approximately once a
week during the time he lived with his foster parent and Watson. We
conclude that these separate occasions do not constitute a single incident
of child abuse, neglect or endangerment and the district court did not err
by rejecting Watson's merger argument.
• Having considered Watson's contentions and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED. 2
Pitko,,a49 J.
Pickering
Parraguirre Saitta
2 The fast track statement fails to comply with NRAP 32(a)(4)
because it is not double-spaced. The fast track response fails to comply
with NRAP 32(a)(5) because the footnotes are not in the same size font as
the body of the brief. Counsel for both parties are cautioned that the
failure to comply with the briefing requirements in the future may result
in the imposition of sanctions. See NRAP 3C(n).
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cc: Hon. Douglas W. Herndon, District Judge
Gary A. Modafferi
Turco & Draskovich
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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(01 I947A .4414544
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